It is not certain that the UK will leave the EU, nor is it clear on what basis it will leave, if and when it does. There may be an exit without any terms having been negotiated and agreed between the UK and the EU (a so-called ‘no-deal Brexit’) or the UK Government may secure a withdrawal agreement with the EU which is then ratified by the UK and EU parliaments.
Whatever form Brexit takes, there will be no effect on how patents are obtained and enforced in the UK or any other states party to the European Patent Convention.
After Brexit, it will continue to be possible to obtain patent protection in the UK based on a European patent application filed with the European Patent Office (EPO). Such an EP(UK) patent will continue to be available because the European Patent Convention which establishes the European Patent Office is not based on any EU legislation. All existing EP(UK) patent applications, patents and associated licences will also remain in force (though parties to licences should review any provisions which refer to the EU). It will also remain possible to protect inventions by way of UK national patents granted by the UK Intellectual Property Office.
In summary, there will be no change for those who own UK patents or have applied for patent protection in the UK. There will also be no change to the rights of representation for UK-based patent attorneys. They will continue to hold full rights at the EPO as well as the UK Intellectual Property Office (UK IPO).
In addition, all EU legislation relevant to patents will be kept in UK law, as well as any legal provisions derived from EU law. In the area of pharmaceuticals and biotechnology, for example, the provisions relating to patenting of biotechnological inventions and exceptions from infringement for carrying out studies, trials and tests on patented pharmaceutical products will remain in force.
The Unitary Patent (UP) and Unified Patent Court (UPC) are intended to provide for a single patent, covering a number of European states, which can be enforced or challenged in a single court. The UK has previously ratified the UPC agreement but the UPC is not yet in force as Germany is yet to ratify. It is unclear when the UPC and UP will come into existence if at all, but in any event they are not expected to become a reality before Brexit. The previous UK government indicated a desire to continue to be part of the UP and UPC post-Brexit and it is assumed this remains an aspiration under the current administration.
Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.